Second Department Issues Ruling in Adverse Possession Case

Litigation

Case: Wright v. Sokoloff, 110 A.D.3d 989 (2nd Dept., October 23, 2013)

In the recent decision of Wright v. Sokoloff, 110 A.D.3d 989 (2nd Dept., October 23, 2013), the Appellate Division, Second Department, clarified the appropriate reading of NY RPAPL § 543(1), which states that “[n]otwithstanding any other provision of this article, the existence of de [minimis] non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed to be permissive and non-adverse.” In reaching its holding, the Second Department explained that under RPAPL 543(1), non-structural encroachments, such as the ones provided in a non-exhaustive list in the statute, are permissive so long as they are de minimis, but upon a showing that such encroachments are not de minimis, those encroachments are adverse. 110 A.D.3d at 990-91.

In Wright v. Sokoloff, the plaintiff-petitioner owned property located at 237 Gin Lane in Southhampton. According to the plaintiff’s deed, the plaintiff was entitled to “a right of way for ingress and egress, and for all other purposes” over a 30-foot-wide strip of land running from Gin Lane to the plaintiff’s lot. Id. at 989. Part of this right of way was located on the defendant-respondent’s lot at 241 Gin Lane. In July 1999, the former owners of defendant’s lot planted an eight-foot-wide hedge on the portion of the right-of-way located on defendant’s lot. According to the plaintiff, he immediately objected and repeatedly requested that the former owner remove the hedge, which the owner refused to do. The defendants, who purchased the property in October 2006, also refused plaintiff’s requests to remove the hedge. Id. at 989.

Plaintiff commenced an action in July 2010 seeking to direct the defendants “to remove the hedges, tress, plantings, structures, and all impediments substantially and unreasonably interfering with [the plaintiff's] right of way.” The Supreme Court granted the defendants’ cross motion for summary judgment and dismissed the complaint (decision available here: WrightvSokoloff). Id. at 990.

On review, the Second Department reversed the lower court on the basis that the defendants failed to establish that the hedge did not in fact pose a substantial interference with the plaintiff’s right of way, nor did the defendants sufficiently prove that plaintiff’s action was time-barred by extinguishment of the right-of-way by means of adverse possession due to the language of RPAPL 543(1). Id. at 990. Under New York law, adverse possession occurs when there is actual, exclusive, hostile, open and notorious possession of property under claim of right for a continuous statutory period of at least ten years. See Estate of Becker v. Murtagh, 19 N.Y.3d 75, 80-81 (2012); NY RPAPL § 521. RPAPL 543(1), the Second Department explained, provides that the presence of a “de [minimis] non-structural encroachment” is permissive and, therefore, not adverse. Because the defendants failed to argue that the hedges were more than a de minimis non-structural encroachment, and therefore adverse, the Second Department found the plaintiff’s argument that the shrubs were permissive and non-adverse to be a triable issue of fact. See 110 A.D.3d at 990.

Despite recognizing the plaintiff’s argument of a triable issue of fact, the court rejected the plaintiff’s theory. According to the plaintiff, any of the non-structural encroachments provided in the statute’s non-exhaustive list are “de minimis non-structural encroachments” and, therefore, are inherently permissive regardless of size. Id. at 990. The Second Department, however, found that such an interpretation would render the use of “de minimis” superfluous. Presuming that all statute clauses serve a purpose, the Second Department rejected plaintiff’s interpretation and instead explained in dictum that in such cases in which RPAPL 543(1) is relevant, any of the non-structural encroachments at issue must be determined to be de minimis before being declared permissive. Id. at 991.

The author acknowledges Michael Barone, Jr., J.D. Candidate 2014, for his contribution to this article.

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